A few years ago I suggested that the term and concept of "racial profiling" as that term has come to be used in the criminal law jurisprudence in Ontario required some fine-tuning. I felt then that the term "racial profiling" failed to recognize the very serious constitutional dimension of the harm done to the victim and indeed the adminstration of justice by the act or omission. I suggested then that the term racial profiling/denial of equality better captured the full scope of the wrong and the defence. The rationale for my thinking rests in the fact that inherent in any act of racial profiling is a denial of the rights of equality before and under the law and the right to life, liberty and security of the person when the act is in the context of the enforcement of the criminal law.
The conventional wisdom seems to believe that the defence of racial profiling is limited to a preliminary procedural application to exclude evidence under section 24 of the Charter. This is incorrect in my view. Racial profiling is not limited to racially motivated car stops and preliminary procedural applications. Racial profiling can indeed found the basis for a substantive defence when the defendant takes the stand and testifies for example that the police planted drugs on his person. Accordingly, racial profiling includes circumstances where police officers actually fabricate allegations- including the planting of evidence in support of a crime while relying on the pretext of public safety, officer safety or the fact that the area they are policing is a "high crime area" knowing full well that their word carries more weight than that of the victim in our courts of law - i.e. courts will typically attach reasonableness to their acts and omissions.
In R v. Kampe 2011 ONSC 5963 I defended a man of African-Canadian racial background on criminal charges of possession of cocaine for the purpose of trafficking where the defence involved a racial profiling/denial of equality defence in that the defendant took the stand and testified that he committed no crime and that the police officers planted the cocaine on his person and a digital scale in his car. In my submissions I specifically invited the court to take judicial notice of the fact of racial discrimination towards individuals of African-Canadian racial background in the Ontario criminal justistic system. I pointed the court to the following legal authorities and even provided the court with copies: R v. Spence [2005] 3 S.C.R. 458, R v. Williams [1998] 1 S.C.R. 1128, R v. Parks (1993) 84 C.C.C. (3d) 345, R v. Brown 2003 Canlii 52142 and the Inquiry Into Discrimination into the Criminal Justice System in Ontario. The trial judge found the defendant guilty and sentenced him to 15 months jail.(see R v. Kampe supra) She ruled that there was in fact no Charter issues raised by the defendant.
Through a brief analysis of the reasons for judgment in R v. Kampe supra I hope to shed some light on what I perceive to be some fundamental flaws in that decision and provide some guidance on this emerging line of defence in our criminal law.
Basic Facts:
(taken from the Reasons for Judgment)
[5] Three police officers were involved in the events leading to the charges against Mr. Kampe - P.C. Fagu, P.C. Lee and P.C. Ahmed. They testified at trial as follows. On November 16, 2009 in the eventing, they were in uniform on general patrol in an unmarked police van in the north end of Rexdale. The three officers were attached to the Community Response Unit of 23 Division, a unit that deals with community complaints. Their duties as members of the Community Response Unit included patrolling "high crime" area within 23 Division. These areas had a high incidence of drug trafficking, drug use, prostitution, noise and drinking.
[6] At about 10:35 p.m., the officers drove into the parking lot of 121 Kendelton Drive, an area known to the officers as a "high crime" area. They noticed a grey Chevy Malibu with its interior lights on backed in to a parking spot in front of 121 Kindelton Drive. This drew the officers' attention. Officers Fagu and Ahmed noted a male black driver and a female pasenger in the car. Officer Lee noted a male black driver and a female white passenger in the car. The officers drove their van past the front of the parked car, stopped, got out, and approached the parked car from the rear. Officer Fagu approached the driver's side with P.C. Ahmed behind him. P.C. Lee approached the passenger's side.
[7] P.C. Fagu testified that while standing just behind the pillar between the driver's door and the rear passenger door, he saw the male looking down in his lap at a piece of what appeared to be crack cocaine. He was able to observe this for a few seconds before Mr. Kampe noticed him. Once Mr. Kampe saw him he closed his right hand and put his left hand on top. P.C. Fagu ordered him to open his hand. Mr. Kampe then moved his hand to the right side of his body and put it in his right pocket, according to P.C. Fagu.
[8] P.C. Lee testified that he heard P.C.. Fagu order Mr. Kampe to open his hand and saw Mr. Kampe put his clenched right hand in his jacket pocket. P.C. Lee reached across the passenger and grabbed Mr. Kampe's wrist out of his jacket pocket. Mr. Kampe's hand was empty.
[9] Officers Fagu and Ahmed testified that they each took control of one of Mr. Kampe's arms and removed him from the car. PC. Lee came around to the driver's side of the car, and whiel the other officers had Mr. Kampe's arms, he reached in to Mr. Kampe's right jacket pocket and removed a piece of crack cocaine that was wrapped and tied in plastice wrap.....[10] During the pat down, Officer Ahmed testified that he found a cell phone and $404.40 on Mr. Kampe.
[11] Officer Fagu testified that he searched the car and found a silver digital scale in working order between the driver's seat and the centre console, and two pieces of plastic wrap on the floor of the driver's side. The car had been rented from Avis.
Mr. Kampe's evidence:
[13] Mr. Kampe testified and related an entirely different version of events than the officers. He testified that he had just gotten into the car with a woman he had met earlier that day when an unmarked police car sped sped in front of his car and cut him off. Three officers approached the car from the front and came to the driver's door. The officers searched him. P.C. Lee did not find crack cocaine in his jacket pocket. None of the officers said anything about finding crack cocaine or a scale at the scene, nor did they show him any crack cocaine or scale at the scene. He did not have any crack cocaine. He had never seen the scale before being paraded before the Staff Sergeant 23 Division that evening. The police have fabricated the story that the crack cocaine was found in his jacket and the scale was found in the car. The money and cell phone that were seized from him belonged to him.
[15] Mr. Kampe testified that he has been the victim of harassment, arbitrary detention, humiliation, assaults, racial profiling and other violations at the hands of members of the Toronto Police Services. He has made complaints about the conduct of the police to the Ontario Human Rights Tribunal. The implication of his evidence that the police have fabricated these allegations is that this is a further example of racial profiling by members of the Toronto Police Service. Mr. Kampe testified that, prior to November 16, 2009, he had never had any dealing with the three officers who arrested him.
[16] Each of the three officers denied Mr. Kampe's allegations that they targeted him because he was black and that they fabricated these allegations against Mr. Kampe.
The passenger
[17] The defence made a great deal of the fact that the Crown has neither called the female passenger as a witness nor disclosed her identity to the defence.
[18] Officers Fagu and Ahmed testified that they did not interact with the passenger at all that evening. Their focus and attention were on Mr. Kampe.
[19] P.C. Lee testified that when he approached the passenger's side of the car, the female saw him immediately and opened the door. He asked her who she was and why she was there. She identified herself with an Ontario Health card. She appeared intoxicated. P.C. Lee called for a scout car and a female police officer. Other officers arrived in a scout car and the female went with those officers. P.C. Lee believes the other officers took her to a bus stop. P.C. Lee testified that he did not make a note of her name in his notebook. He did not believe he had grounds to arrest her. He did not search her. He agreed with Mr. Guiste that she would have heard the events that unfolded that evening.
[35] Mr. Kampe spent a great deal of time during his testimony explaining that he had been the victim of police harassment on numerous occasions due to his race. Mr. Guiste's final submission was that these charges were yet another example of racial profiling and tunnel vision on behalf of members of the Toronto Police Services. I do not accept this submission. The fact that Mr. Kampe believes that the police have harassed him in the past does not lead to the conclusion that three officers, with whom he has never previously had any contact, would randomly target him, assault him and fabricate evidence of a serious criminal offence.
[36] Mr. Guiste also asks me to draw an adverse inference from the fact that the woman in the car with Mr. Kampe was not called as a witness. He asked me to infer that she would have confirmed Mr. Kampe's evidence about what happened that evening. I agree with Mr. Guiste that P.C. Lee's failure to make a note of the woman's name that evening or investigate her further is unusual. On the other hand, on the evening in question, Mr. Kampe knew the woman's name, her telephone number and her address. P.C. Lee testified that once he heard P.C. Fagu order Mr. Kampe to open his hand, his attention became focused on Mr. Kampe. This makes sense to me. I am unable to infer from the failure of the woman to testify that she would have supported either Mr. Kampe's version of the events or the police officers' version. The absence of her evidence does not logically give rise to a reasonable doubt in this case.
[37] I do not believe the evidence of Mr. Kampe, nor does it leave me with a reasonable doubt. On the basis of the evidence I do accept as credible and reliable, I am satisfied beyond a reasonable doubt that Mr. Kampe was in possession of 5.06 grams of crack cocaine on November 16, 2009.
[39] I find Mr. Kampe guilty of possession of cocaine for the purpose of trafficking.
Analysis and commentary:
The trial judge's Reasons for Judgment make it crystal clear that she did not take judicial notice of the phenomenon of racial discrimination in the criminal justice system as I requested and she did not subject the evidence before her to the scrutiny set down by the Court of Appeal for Ontario in R v. Brown 2003 Canlii 52142. Instead the trial judge did exactly what I understood from R v. Brown supra that a trial judge ought not to do, namely, restrict their inquiry into the evidence to direct evidence and a credibility contest between the police version and that of the defendant. The trial record is clear that the trial judge failed to consider whether the following facts invited a reasonable inference of racial profiling and thus raised a reasonable doubt:
1. Primia facie differential treatment between the defendant and his passenger;
2. Defendant is charged while she is not even though based on the police account
she was looking at the substance said to be in his hand;
3. Police do not obtain her name and address although they acknowledged under
cross-exam that she had material evidence to give;
4. Officers testified that they "snuck up" on the defendant's car from the rear
because he had the inner light on and this was suspicious. In cross-examination
P.C. Fagu maintained that he would do the same thing - i.e. sneak up from the
rear - if he saw a car with an older white couple parked in the lot of the
O'Keefe Centre with its interior light on; and
5. The defendant testified that the police cut him off and more or less ambushed him.
I am troubled by the trial judge's declaration that the constitutionality of the conduct of the police was not challenged. At paragraph 22 she wrote, "The constitutionality of the conduct of the police was not challenged. No applications were brought by Mr. Kampe alleging a breach of his rights under the Charter, or related to the non-disclosure of the name of the passenger."
The evidentiary record in this trial is clear from beginning to end that the crux of the defence to the allegations was that Mr. Kampe committed no crime and that the police planted drugs on his person and in his vehicle in order to implicate him on account of his race. The fact that he lived in the area which the police characterized as a "high crime area" makes him a potential target of the racial profiling he testified to. I can think of no greater constitutional wrong than for the state to wrongly implicate a man in criminality on account of his race. In the context of our Charter this set of circumstances engages a multitude of Charter rights including the right of freedom of association, the right to life liberty and security of the person and the right to be safe against unreasonable seizure. The nature of Mr. Kampe's testimony combined with the facts which flowed from the three police officers brought the conduct of the police officers squarely under constitutional scrutiny. The courts are the guardians of the constitution. A trial judge sitting on a criminal case is free to find constitutional violations where the evidence and the nature of the defence invites it. It is their duty to so act. In the case of Mr. Kampe I can not help but wonder whether the trial judge would have taken the same view of the failure of the police to secure the passenger's identification if Mr. Kampe had been accused of shooting and killing one of the police officers instead of merely possession of crack cocaine. Clearly the evidence of the independent witness(passenger) would be highly relevant if Mr. Kampe's position was that he did not kill the officer it was in fact his fellow officer who shot and killed him and planted the murder weapon on him.
Note: This case comment is written for the express purpose of drawing attention to an issue of public importance in the criminal justice system.
The conventional wisdom seems to believe that the defence of racial profiling is limited to a preliminary procedural application to exclude evidence under section 24 of the Charter. This is incorrect in my view. Racial profiling is not limited to racially motivated car stops and preliminary procedural applications. Racial profiling can indeed found the basis for a substantive defence when the defendant takes the stand and testifies for example that the police planted drugs on his person. Accordingly, racial profiling includes circumstances where police officers actually fabricate allegations- including the planting of evidence in support of a crime while relying on the pretext of public safety, officer safety or the fact that the area they are policing is a "high crime area" knowing full well that their word carries more weight than that of the victim in our courts of law - i.e. courts will typically attach reasonableness to their acts and omissions.
In R v. Kampe 2011 ONSC 5963 I defended a man of African-Canadian racial background on criminal charges of possession of cocaine for the purpose of trafficking where the defence involved a racial profiling/denial of equality defence in that the defendant took the stand and testified that he committed no crime and that the police officers planted the cocaine on his person and a digital scale in his car. In my submissions I specifically invited the court to take judicial notice of the fact of racial discrimination towards individuals of African-Canadian racial background in the Ontario criminal justistic system. I pointed the court to the following legal authorities and even provided the court with copies: R v. Spence [2005] 3 S.C.R. 458, R v. Williams [1998] 1 S.C.R. 1128, R v. Parks (1993) 84 C.C.C. (3d) 345, R v. Brown 2003 Canlii 52142 and the Inquiry Into Discrimination into the Criminal Justice System in Ontario. The trial judge found the defendant guilty and sentenced him to 15 months jail.(see R v. Kampe supra) She ruled that there was in fact no Charter issues raised by the defendant.
Through a brief analysis of the reasons for judgment in R v. Kampe supra I hope to shed some light on what I perceive to be some fundamental flaws in that decision and provide some guidance on this emerging line of defence in our criminal law.
Basic Facts:
(taken from the Reasons for Judgment)
[5] Three police officers were involved in the events leading to the charges against Mr. Kampe - P.C. Fagu, P.C. Lee and P.C. Ahmed. They testified at trial as follows. On November 16, 2009 in the eventing, they were in uniform on general patrol in an unmarked police van in the north end of Rexdale. The three officers were attached to the Community Response Unit of 23 Division, a unit that deals with community complaints. Their duties as members of the Community Response Unit included patrolling "high crime" area within 23 Division. These areas had a high incidence of drug trafficking, drug use, prostitution, noise and drinking.
[6] At about 10:35 p.m., the officers drove into the parking lot of 121 Kendelton Drive, an area known to the officers as a "high crime" area. They noticed a grey Chevy Malibu with its interior lights on backed in to a parking spot in front of 121 Kindelton Drive. This drew the officers' attention. Officers Fagu and Ahmed noted a male black driver and a female pasenger in the car. Officer Lee noted a male black driver and a female white passenger in the car. The officers drove their van past the front of the parked car, stopped, got out, and approached the parked car from the rear. Officer Fagu approached the driver's side with P.C. Ahmed behind him. P.C. Lee approached the passenger's side.
[7] P.C. Fagu testified that while standing just behind the pillar between the driver's door and the rear passenger door, he saw the male looking down in his lap at a piece of what appeared to be crack cocaine. He was able to observe this for a few seconds before Mr. Kampe noticed him. Once Mr. Kampe saw him he closed his right hand and put his left hand on top. P.C. Fagu ordered him to open his hand. Mr. Kampe then moved his hand to the right side of his body and put it in his right pocket, according to P.C. Fagu.
[8] P.C. Lee testified that he heard P.C.. Fagu order Mr. Kampe to open his hand and saw Mr. Kampe put his clenched right hand in his jacket pocket. P.C. Lee reached across the passenger and grabbed Mr. Kampe's wrist out of his jacket pocket. Mr. Kampe's hand was empty.
[9] Officers Fagu and Ahmed testified that they each took control of one of Mr. Kampe's arms and removed him from the car. PC. Lee came around to the driver's side of the car, and whiel the other officers had Mr. Kampe's arms, he reached in to Mr. Kampe's right jacket pocket and removed a piece of crack cocaine that was wrapped and tied in plastice wrap.....[10] During the pat down, Officer Ahmed testified that he found a cell phone and $404.40 on Mr. Kampe.
[11] Officer Fagu testified that he searched the car and found a silver digital scale in working order between the driver's seat and the centre console, and two pieces of plastic wrap on the floor of the driver's side. The car had been rented from Avis.
Mr. Kampe's evidence:
[13] Mr. Kampe testified and related an entirely different version of events than the officers. He testified that he had just gotten into the car with a woman he had met earlier that day when an unmarked police car sped sped in front of his car and cut him off. Three officers approached the car from the front and came to the driver's door. The officers searched him. P.C. Lee did not find crack cocaine in his jacket pocket. None of the officers said anything about finding crack cocaine or a scale at the scene, nor did they show him any crack cocaine or scale at the scene. He did not have any crack cocaine. He had never seen the scale before being paraded before the Staff Sergeant 23 Division that evening. The police have fabricated the story that the crack cocaine was found in his jacket and the scale was found in the car. The money and cell phone that were seized from him belonged to him.
[15] Mr. Kampe testified that he has been the victim of harassment, arbitrary detention, humiliation, assaults, racial profiling and other violations at the hands of members of the Toronto Police Services. He has made complaints about the conduct of the police to the Ontario Human Rights Tribunal. The implication of his evidence that the police have fabricated these allegations is that this is a further example of racial profiling by members of the Toronto Police Service. Mr. Kampe testified that, prior to November 16, 2009, he had never had any dealing with the three officers who arrested him.
[16] Each of the three officers denied Mr. Kampe's allegations that they targeted him because he was black and that they fabricated these allegations against Mr. Kampe.
The passenger
[17] The defence made a great deal of the fact that the Crown has neither called the female passenger as a witness nor disclosed her identity to the defence.
[18] Officers Fagu and Ahmed testified that they did not interact with the passenger at all that evening. Their focus and attention were on Mr. Kampe.
[19] P.C. Lee testified that when he approached the passenger's side of the car, the female saw him immediately and opened the door. He asked her who she was and why she was there. She identified herself with an Ontario Health card. She appeared intoxicated. P.C. Lee called for a scout car and a female police officer. Other officers arrived in a scout car and the female went with those officers. P.C. Lee believes the other officers took her to a bus stop. P.C. Lee testified that he did not make a note of her name in his notebook. He did not believe he had grounds to arrest her. He did not search her. He agreed with Mr. Guiste that she would have heard the events that unfolded that evening.
[35] Mr. Kampe spent a great deal of time during his testimony explaining that he had been the victim of police harassment on numerous occasions due to his race. Mr. Guiste's final submission was that these charges were yet another example of racial profiling and tunnel vision on behalf of members of the Toronto Police Services. I do not accept this submission. The fact that Mr. Kampe believes that the police have harassed him in the past does not lead to the conclusion that three officers, with whom he has never previously had any contact, would randomly target him, assault him and fabricate evidence of a serious criminal offence.
[36] Mr. Guiste also asks me to draw an adverse inference from the fact that the woman in the car with Mr. Kampe was not called as a witness. He asked me to infer that she would have confirmed Mr. Kampe's evidence about what happened that evening. I agree with Mr. Guiste that P.C. Lee's failure to make a note of the woman's name that evening or investigate her further is unusual. On the other hand, on the evening in question, Mr. Kampe knew the woman's name, her telephone number and her address. P.C. Lee testified that once he heard P.C. Fagu order Mr. Kampe to open his hand, his attention became focused on Mr. Kampe. This makes sense to me. I am unable to infer from the failure of the woman to testify that she would have supported either Mr. Kampe's version of the events or the police officers' version. The absence of her evidence does not logically give rise to a reasonable doubt in this case.
[37] I do not believe the evidence of Mr. Kampe, nor does it leave me with a reasonable doubt. On the basis of the evidence I do accept as credible and reliable, I am satisfied beyond a reasonable doubt that Mr. Kampe was in possession of 5.06 grams of crack cocaine on November 16, 2009.
[39] I find Mr. Kampe guilty of possession of cocaine for the purpose of trafficking.
Analysis and commentary:
The trial judge's Reasons for Judgment make it crystal clear that she did not take judicial notice of the phenomenon of racial discrimination in the criminal justice system as I requested and she did not subject the evidence before her to the scrutiny set down by the Court of Appeal for Ontario in R v. Brown 2003 Canlii 52142. Instead the trial judge did exactly what I understood from R v. Brown supra that a trial judge ought not to do, namely, restrict their inquiry into the evidence to direct evidence and a credibility contest between the police version and that of the defendant. The trial record is clear that the trial judge failed to consider whether the following facts invited a reasonable inference of racial profiling and thus raised a reasonable doubt:
1. Primia facie differential treatment between the defendant and his passenger;
2. Defendant is charged while she is not even though based on the police account
she was looking at the substance said to be in his hand;
3. Police do not obtain her name and address although they acknowledged under
cross-exam that she had material evidence to give;
4. Officers testified that they "snuck up" on the defendant's car from the rear
because he had the inner light on and this was suspicious. In cross-examination
P.C. Fagu maintained that he would do the same thing - i.e. sneak up from the
rear - if he saw a car with an older white couple parked in the lot of the
O'Keefe Centre with its interior light on; and
5. The defendant testified that the police cut him off and more or less ambushed him.
I am troubled by the trial judge's declaration that the constitutionality of the conduct of the police was not challenged. At paragraph 22 she wrote, "The constitutionality of the conduct of the police was not challenged. No applications were brought by Mr. Kampe alleging a breach of his rights under the Charter, or related to the non-disclosure of the name of the passenger."
The evidentiary record in this trial is clear from beginning to end that the crux of the defence to the allegations was that Mr. Kampe committed no crime and that the police planted drugs on his person and in his vehicle in order to implicate him on account of his race. The fact that he lived in the area which the police characterized as a "high crime area" makes him a potential target of the racial profiling he testified to. I can think of no greater constitutional wrong than for the state to wrongly implicate a man in criminality on account of his race. In the context of our Charter this set of circumstances engages a multitude of Charter rights including the right of freedom of association, the right to life liberty and security of the person and the right to be safe against unreasonable seizure. The nature of Mr. Kampe's testimony combined with the facts which flowed from the three police officers brought the conduct of the police officers squarely under constitutional scrutiny. The courts are the guardians of the constitution. A trial judge sitting on a criminal case is free to find constitutional violations where the evidence and the nature of the defence invites it. It is their duty to so act. In the case of Mr. Kampe I can not help but wonder whether the trial judge would have taken the same view of the failure of the police to secure the passenger's identification if Mr. Kampe had been accused of shooting and killing one of the police officers instead of merely possession of crack cocaine. Clearly the evidence of the independent witness(passenger) would be highly relevant if Mr. Kampe's position was that he did not kill the officer it was in fact his fellow officer who shot and killed him and planted the murder weapon on him.
Note: This case comment is written for the express purpose of drawing attention to an issue of public importance in the criminal justice system.